Court File and Parties
COURT FILE NO.: 659/17 DATE: 2019 05 24 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: M.W., Plaintiff/Respondent AND: Halton Regional Police Services Board and Constable Ross Amore, Defendants/Moving Parties
BEFORE: Conlan J.
COUNSEL: Christopher Rapson, Counsel for the Plaintiff/Respondent Robin Squires/Natalie Salafia, Counsel for the Defendants/Moving Parties
HEARD: May 23, 2019
Endorsement
Motion for Summary Judgment
Introduction
[1] On February 16, 2017, the Plaintiff, M.W., commenced a Notice of Action against the Defendants, Halton Regional Police Services Board and Detective Constable Ross Amore (“Amore”).
[2] In that pleading, M.W. seeks damages in the amount of $150,000.00. He alleges that the Defendants are liable for false arrest, false imprisonment, negligent investigation, malicious breach of public duty, malicious prosecution, misfeasance of public office, and violating M.W.’s Charter rights.
[3] More specifically, M.W. alleges that he was the victim of a bad police investigation. He was living with his wife and his three children (triplets, 15 years old at the time) in Milton. In February 2015, the Halton Regional Police Service (“Police”) investigated M.W. for an alleged assault that he committed against his son, Co. Amore was in charge of the investigation.
[4] M.W. alleges that, on February 19, 2015, he was detained and interrogated by Amore at the police station. It is alleged that M.W. was not cautioned or given his right to counsel. He was released the same day, unconditionally and without any charge being laid.
[5] M.W. alleges that Amore threatened to arrest him for assault in the future and continued to harass him.
[6] On March 23, 2016, Amore again investigated M.W. for allegedly assaulting Co. M.W. states that, when that investigation went nowhere, based on information that the Police had received, without reasonable grounds, Amore arrested M.W. for assaulting his daughter Ca. M.W. was charged under section 266 of the Criminal Code.
[7] M.W. was released on an Undertaking that he alleges separated him from his family, his home and his children’s school.
[8] On January 16, 2017, the assault charge was withdrawn by the Crown.
[9] In addition to having defended the action, the Defendants have brought a Motion for summary judgment to dismiss it.
[10] The Defendants acknowledge that, in February 2015, M.W. was investigated for allegedly assaulting his son Co. That investigation was spawned by a report from staff at the boy’s school to the local child welfare agency. No charge was laid, however, M.W. was cautioned by the Police.
[11] The Defendants acknowledge, further, that a second investigation occurred on March 23, 2016. Staff at the school again reported an alleged complaint of assault by Co. at the hands of his father. The Police interviewed all three children. Ca. recounted an incident during which M.W. allegedly pushed her face into a mattress, put his hands around her neck and his legs on her back, squeezed her throat, and lifted her by her throat.
[12] The Defendants state that there were ample reasonable and probable grounds for the Police to have arrested M.W. for assaulting his daughter Ca.
[13] The Defendants acknowledge that the charge was withdrawn by the Crown on January 16, 2017 but state that the withdrawal was part of an informal diversion program that was worked out between the prosecutor and counsel for M.W. (Mr. Paul Stunt). In particular, M.W. completed some counselling prior to the charge being withdrawn.
[14] The Defendants submit that there is no genuine issue requiring a trial, and thus, the action ought to be dismissed at this stage. M.W. disagrees.
[15] Note that the Defendants’ Motion for summary judgment was scheduled to be heard at Court in Milton on April 23, 2019. I had read much material in advance of the hearing. Unfortunately, during the submissions made by counsel for the Defendants, it became apparent that some of the filed material was missing (it was not in the Courtroom and had not been read by me in advance) – the contents of the Defendants’ Motion Record and Supplementary Motion Record dated July 2018. Consequently, all counsel and the Court agreed that the Motion had to be adjourned to May 23, 2019 to continue the hearing.
The Law
[16] There is no dispute between the parties regarding the general legal principles applicable to this Motion for summary judgment. They are nicely summarized at paragraphs 32 through 37 of the Factum of the Defendants/Moving Parties, reproduced below.
According to the Rules of Civil Procedure, a defendant may, after delivering a Statement of Defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the Statement of Claim.
Rule 20.01(3) of the Rules of Civil Procedure, R.S.O. 1990, Reg. 149 [the “Rules”], Schedule “B”.
Rule 20.04(2)(a) of the Rules of Civil Procedure provides:
The court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.[emphasis added]
Rule 20.04(2) of the Rules, Schedule “B”.
In determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence submitted by the parties and the judge may weigh the evidence, evaluate the credibility of a deponent and draw any reasonable inference from the evidence, unless it is in the interest of justice for such powers to be exercised only at a trial.
Rule 20.04(2.1) of the Rules, Schedule “B”.
The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 held that there will be no genuine issue for trial when the summary judgment process: (1) allows the judge to make the necessary findings of fact; (2) allows the judge to apply the law to the facts; and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. There will be no genuine issue requiring a trial if the summary judgment process provides the motion judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure.
Hryniak v. Mauldin, 2014 SCC 7 at paras. 49 and 66, Defendants’ Brief of Authorities (“Defendants’ BOA”); Tab 1.
Courts confronted with motions for summary judgment in factually-laden claims, such as this one, are encouraged to carefully examine the factual record and the case as pled to determine whether summary judgment should be granted.
Moak v. Ontario (Provincial Police), 2008 ONSC 65, [2008] O.J. No. 8 (Sup. Ct.) at paras. 7 and 8, Defendants’ BOA, Tab 2 [“Moak”].
On a motion for summary judgment, the moving party bears the initial onus of demonstrating that there is no genuine issue requiring a trial. The responding party must then meet the burden of demonstrating that their claim has a real chance of success. The court is entitled to assume that each party has put its best case forward and presented the evidence they rely upon to make out their case.
Sanzone v. Schechter, 2016 ONCA 566 at paras. 30 and 32, Defendants’ BOA, Tab 3
[17] Further, I can do no better than to borrow, slavishly, from Justice I.F. Leach in the decision, J.H. v. Windsor (City) Police Services Board, [2017] O.J. No. 5597 (S.C.J.), which conveniently for us dealt with a similar motion to dismiss a similar claim as compared to the facts of our case, at paragraphs 7 through 15, for an outline of the applicable legal principles.
[7] As for summary judgment, the relevant legislative provisions are found in Rule 20 of Ontario’s Rules of Civil Procedure.
[8] Pursuant to Rule 20.01(3), a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in a plaintiff’s statement of claim. [42]
[9] Numerous additional “sub-rules” outline the manner in which the court must approach such a motion, and the powers the court has in that regard. They include the following:
- Pursuant to Rule 20.02(1), an affidavit for use on a motion for summary judgment may be made on information and belief, if the source of the information and the fact of the belief are specified in the affidavit, as required by subrule 39.01(4). However, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts.
- Pursuant to Rule 20.02(2), a plaintiff responding to a defendant’s motion for summary judgment may not rest solely on the allegations or denials in his or her pleadings, but “must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial”. This has been supplemented by repeated judicial admonitions emphasizing, in various ways, that a respondent to a such a motion is not permitted “to sit back and rely on the possibility that more favourable facts may develop at trial”, and is instead required to “lead trump or risk losing” and “put its best foot forward”, as “the court is entitled to assume that the record contains all the evidence the parties would present at trial”. [43]
- Pursuant to Rule 20.04(2), the court is obliged to grant summary judgment if it satisfied “that there is no genuine issue requiring a trial with respect to a claim or defence”.
- In making that determination, the court is to consider the evidence submitted by the parties, and pursuant to Rule 20.04(2.1), may weigh the evidence, evaluate the credibility of a deponent, and draw any reasonable inference from the evidence, “unless it is in the interest of justice for such powers to be exercise only at trial”. In the exercise of those powers, the court also has the ability, pursuant to Rule 20.04(2.2), to order presentation of oral evidence by one or more of the parties; i.e., to direct a “mini-trial”.
- Where the only genuine issue is the amount of the plaintiff’s entitlement, the court has the ability, pursuant to Rule 20.04(3), to order a trial of that issue, or grant judgment with a reference to determine the amount. Similarly, pursuant to Rule 20.04(4), where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly.
- Where summary judgment is refused or granted only in part, the court nevertheless has additional powers, pursuant to Rules 20.05(1) and (2), to specify what material facts are not in dispute, define the issues to be tried, order that the action proceed to trial expeditiously, and make numerous further orders and directions that may be just in the circumstances.
[10] In Hryniak v. Mauldin, supra, the Supreme Court of Canada encouraged the use of Ontario’s summary judgment rule to resolve cases in an expeditious manner provided that can achieve a fair and just adjudication.
[11] Speaking for the court, the comments of Justice Karakatsanis in that regard included the following:
Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial. …
Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pre-trial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case. The balance between procedure and access struck by our justice system must come to reflect the modern reality and recognize that new models of adjudication can be fair and just. …
There is growing support for alternative adjudication of disputes and a developing consensus that the traditional balance struck by extensive pre-trial processes and the conventional trial no longer reflects the modern reality and needs to be re-adjusted. A proper balance must recognize that a process can be fair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than the conventional trial. [44]
[12] Consistent with that general approach and philosophy, Justice Karakatsanis indicated, at paragraph 22 of Bruno Appliance and Furniture, Inc. v. Hyrniak, 2014 SCC 7, [2014] 1 S.C.R. 87, (a companion action to Hyrniak v. Mauldin, supra), that summary judgment would be appropriate where a matter “can be resolved in a fair and just manner”, which will be the case when the process:
i. allows the judge to make the necessary findings of fact; ii. allows the judge to apply the law to the facts; and iii. is a proportionate, more expeditious and less expensive means to achieve a just result.
[13] Justice Karakatsanis went on to say, in the same paragraph, that if there appeared to be a genuine issue requiring a trial, based only on the record before a judge hearing a summary judgment motion, that judge must then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. If so, those powers may then be used at the judge’s discretion, “provided that their use is not against the interest of justice”.
[14] The above principles are now applicable to all motions for summary judgment.
[15] However, I think it worth noting that, even before the “culture shift” mandated by Hyrniak v. Mauldin, supra, our courts were emphasizing the importance of giving very serious consideration to summary judgment motions brought in relation to actions involving negligent investigation and similar claims. See, for example, the following judicial observations made in 2009, in Wong v. Kyriacou, 2009 ONSC 65, at paragraph 49:
Summary judgment plays a particularly important role in actions brought against prosecutorial entities. The availability of summary judgment protects the exercise of prosecutorial function in the absence of those entities being given complete immunity from tort claims. Accordingly, courts confronted with motions for summary judgment in factually-laden claims of negligent investigation, false arrest, false imprisonment and malicious prosecution are encouraged to carefully examine the factual record and the case as pleaded to determine whether summary judgment should be granted. [45]
The Law as Applied to this Case
[18] For the reasons that follow, partial summary judgment is granted dismissing all but one of the causes of action pleaded. The sole matter that is permitted to proceed is the allegation that the Police violated M.W.’s Charter rights on February 19, 2015.
[19] Mr. Rapson, on behalf of M.W., concedes that all causes of action pleaded, except the Charter claims, ought to be dismissed if this Court sides with the Defendants and holds that there is no genuine issue for trial on whether the Police had reasonable and probable grounds for the arrest of M.W. on March 23, 2016.
[20] I so find. The Defendants have satisfied this Court on balance that there is indeed no genuine issue for trial on that issue. Put affirmatively, I am of the view on the evidence filed that the Police clearly had reasonable and probable grounds to arrest M.W. for assaulting his daughter Ca.
[21] There is no dispute by M.W.’s counsel that Ca.’s allegation of having been pushed down and then choked by her father is capable of constituting an assault. What is submitted on behalf of M.W. is that the Police ought to have investigated further and, for example, questioned the child protection worker that was present when Ca. was interviewed by the Police on March 23, 2016. If the Police had done so, it is submitted, they would have discovered that the child protection agency, at the time that the allegation was originally disclosed, did not verify the incident.
[22] I do not accept that argument. First, reference must be had to the test for reasonable and probable grounds for an arrest as set out in paragraph 17 of the seminal decision of the Supreme Court of Canada in R. v. Storrey, 1990 SCC 125, [1990] S.C.J. No. 12.
- In summary then, the Criminal Code requires that an arresting officer must subjectively have reasonable and probable grounds on which to base the arrest. Those grounds must, in addition, be justifiable from an objective point of view. That is to say, a reasonable person placed in the position of the officer must be able to conclude that there were indeed reasonable and probable grounds for the arrest. On the other hand, the police need not demonstrate anything more than reasonable and probable grounds. Specifically they are not required to establish a prima facie case for conviction before making the arrest.
[23] Second, it must be remembered that there is nothing improper about arresting someone based on the uncorroborated allegation of one witness, even a child witness. After all, child abuse is rarely witnessed by others and is often not brought to the attention of the Police right away.
[24] Third, there being no argument that the arresting officer did not have subjective grounds for the arrest, the objective component must be looked at contextually. Ca. made the allegation spontaneously. She provided detail. And her allegation was not isolated from two prior complaints received by the Police that M.W. had assaulted another one of his children.
[25] Surely, in those circumstances, viewed objectively, there were reasonable and probable grounds to arrest M.W. for assaulting Ca.
[26] Assuming without determining that the Police should have questioned the child protection worker about the result of Ca.’s disclosure when it was first reported to the agency, and assuming without determining that the said enquiry would have revealed that the complaint was not verified, that does not change this Court’s assessment of whether the Police had reasonable and probable grounds for the arrest of M.W. On the objective component, that would have been one factor for the Police to have considered, but in the absence of much further information a factor of limited value. What did the child disclose on the prior date? What did the agency do to investigate it? What does “not verified” or “unverified” mean?
[27] The Police were reasonably entitled to make their decision based on the information that they had. That it took the child less than two minutes to disclose the alleged assault to the Police during her interview, which counsel for M.W. equates to a “one minute and 47 second investigation”, does not turn this in to an unlawful arrest, or even point to a genuine issue for trial in that regard.
[28] Given this Court’s assessment of the lawfulness of the arrest, and given counsel for M.W.’s fair concession about how that impacts the claims being advanced, the following causes of action pleaded must be dismissed on a final basis: false arrest, false imprisonment, negligent investigation, malicious breach of public duty, malicious prosecution, and misfeasance of public office.
[29] That leaves just the issue of the Charter claims. I have no hesitation in concluding that those must be allowed to persist. There is a genuine issue for trial, namely, whether M.W. was detained when he was questioned by the Police on February 19, 2015. It is common ground that, if he was, he ought to have been afforded his section 10 Charter rights [(a) to be informed promptly of the reasons therefor and (b) to retain and instruct counsel without delay and to be informed of that right], which was not done.
[30] The law on detention and waiver of right to counsel is summarized below, taken from paragraphs 55 through 62 of the decision in R. v. O’Leary, 2015 ONSC 1326, affirmed by the Court of Appeal for Ontario.
[55] Section 10(b) of the Charter provides that “[e]veryone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right”.
[56] “Detention” refers to the suspension of a person’s liberty interest by a significant physical or psychological restraint. R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[57] Psychological detention can arise where the suspect has a legal obligation to comply with the police demand. Or it can arise where a reasonable person would consider that she had no choice but to comply. Grant, supra.
[58] With regard to the latter, the inquiry is an objective one. The entire interaction between the police officer and the accused must be considered. It serves no purpose to parse minute words or actions in isolation. Grant, supra.
[59] There is no exhaustive list of ingredients for the recipe of psychological detention. A judge may consider, first, the circumstances which precipitated the encounter between the police officer and the suspect. For example, were the police making general inquiries or were they singling out this accused for focussed investigation of a specific event? Second, a judge may consider the nature of the police conduct. For example, where did the interview occur? For how long? How did the suspect get there? Was anyone else present? Third, a judge may consider the particular characteristics of the accused – his age, size, minority status and level of sophistication, as examples. Grant, supra.
[60] In R. v. Moran, 1987 ONCA 124, [1987] O.J. No. 794, Justice Martin, for the Court of Appeal for Ontario, outlined some of the factors that may be considered in deciding whether someone was detained at the time that he was questioned by the police at the police station. Justice Martin set out the following non-exhaustive list of seven considerations (pages 23 and 24).
- The precise language used by the police officer in requesting the person who subsequently becomes an accused to come to the police station, and whether the accused was given a choice or expressed a preference that the interview be conducted at the police station, rather than at his or her home;
- whether the accused was escorted to the police station by a police officer or came himself or herself in response to a police request;
- whether the accused left at the conclusion of the interview or whether he or she was arrested;
- the stage of the investigation, that is, whether the questioning was part of the general investigation of a crime or possible crime or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused;
- whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated;
- the nature of the questions: whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his or her guilt;
- the subjective belief by an accused that he or she is detained, although relevant, is not decisive, because the issue is whether he or she reasonably believed that he or she was detained. Personal circumstances relating to the accused, such as low intelligence, emotional disturbance, youth and lack of sophistication are circumstances to be considered in determining whether he had a subjective belief that he was detained.
[61] There are two parts to the section 10(b) Charter right: the information component and the implementation component. The former, in plain language, means the obligation on the part of the police to tell the accused what he has the right to know. The latter refers to the requirement that the police facilitate the accused exercising his right to counsel.
[62] The right to counsel is not easily waived. The standard required for an effective waiver is high. The Crown has the burden of establishing unequivocal waiver. The waiver must be free and voluntary. And it must be informed – one cannot waive something without knowing what is being given up. R. v. Prosper (1994) 1994 SCC 65, 92 C.C.C. (3d) 353 (S.C.C.).
[31] On these legal issues, the evidence is conflictual and requires an assessment of the credibility of the Police, specifically Amore, and M.W. A trial is clearly required.
[32] For example, while there are factors pointing in favour of detention (the questioning of M.W. by Amore on February 19, 2015 was lengthy and occurred in a closed-door interrogation room at the police station, and Amore has admitted in cross-examination on his evidence filed on this Motion that he is not certain whether the family was free to leave the police station at the time that M.W. was questioned given that there was a joint Police/child welfare investigation, and M.W. has deposed that he certainly felt detained, and having watched the audio-video interview it is clear that Amore asked M.W. specific questions about whether he had ever physically assaulted his children), there are also some factors pointing away from a finding of detention (such as Amore’s own evidence and statements to M.W. during the interview itself that M.W. was not under arrest and would not be facing any criminal charge).
[33] Frankly, if pressed now to make a decision on the issue of detention, not only would I find that a genuine issue remained but I would likely find that the preponderance of the evidence filed to date suggests that there was a detention.
[34] Thus, that limited portion of the summary judgment Motion fails. Note that, besides the issue of detention, no other reason was advanced by the Defendants as to why the Charter claims should not be permitted to proceed.
Conclusion
[35] The Motion for summary judgment is granted in large part. All claims are dismissed on a final basis except for the allegation that the Police violated M.W.’s Charter rights in the context of what happened at the police station on February 19, 2015.
[36] Order accordingly. On costs, if not settled between the parties, they are presumed to go in favour of the Defendants, however, I will receive written submissions. The Defendants shall file theirs within thirty (30) calendar days of today, and the Plaintiff shall file his within fifteen (15) days thereafter. No reply is permitted without leave of the Court. Each submission shall be limited to two pages, excluding attachments such as a Costs Outline, a Bill of Costs, and copies of offers to settle.